A jury will soon decide if a New Jersey employer is liable for electronic snooping in the case of Pietrylo et al. v. Hillstone Restaurant Group. The lawsuit, which was filed in 2006, alleges, amongst other things, that Hillstone illegally accessed and reviewed a Myspace.com account owned and operated by Pietrylo in violation of the Electronic Communication’s Act (“ECPA”).

Hillstone, owns and operates a number of restaurant chains across the country. One such chain, named Houston’s, employed Pietrylo as a server. The complaint alleges that on Pietrylo’s free time he and a friend created a private group on Pietrylo’s Myspace.com account. That group was called the “Spectator” and served as a platform to discuss and often criticize their employers. Access to the Spectator required an invitation from Pietrylo.

Pietrylo alleges in his Complaint that a member of Houston’s upper management became aware of the Spectator. The complaint then alleges that such member “strong-armed” an authorized member of the Spectator, who was also an employee and co-worker of Pietrylo, into providing access to the Spectator. Once that member of upper management gained access to the Spectator, it secretly monitored and reviewed postings to it.

Finally, the complaint claims that upper management fired Pietrylo solely because of his role in establishing and maintaining the Spectator. The complaint claims that Houston’s access and review of the Spectator—thorough upper management—leaves it liable for amongst other things: violating the ECPA; New Jersey’s version of the ECPA; violating Pietrylo’s common law right to privacy; and his state and federal constitutional right to free speech.  

In the mid 1980s and in the wake of the proliferation of new electronic technologies, i.e. the internet and email, Congress amended the Wiretap Act through passage of the ECPA. The ECPA is divided into three titles. Houston was sued under Title I and Title II. Titles I prohibits the interception of electronic communications. Title II prohibits the illegal access of Stored Communication, e.g. email or in Pietrylo’s case, postings to the Spectator.

Pietrylo’s voluntarily dismissed his claims under Title I after he discovered that the members of upper management had not “intercepted” any of the postings to the Spectator. Interception of electronic communication requires that the communication is accessed during transit and before it arrives to its intended recipient.

Houston’s tried to have the complaint dismissed on Pietrylo’s claims that it violated Title II of the ECPA. The court denied that request on the ground that a jury should decide whether a member of upper management coerced access to the Spectator. Houston’s would not be liable under the ECPA if they were willingly provided access to the Spectator by an authorized user. The court suggests that the ECPA is violated if Houston’s gained access to the Spectator by coercion. The trial is set for June 9, 2009.

Over the next few weeks I will blawg about the ECPA in more depth. It is a statute of tremendous importance for both employers and employees. Employers have legitimate concerns over what their employees are sending or receiving over the internet, either while on the clock or at home. An employee could give away trade secrets, or subject his employer via vicarious liability, to liability for tortious acts committed over the internet. These concerns have caused employers to monitor what their employees do while on the internet. If an employer is not careful, such monitoring can leave it liable under the ECPA.

If an employer is found liable under the ECPA it can be made to pay attorney fees, statutory damages of no less then $1,000.00, and any actual damages suffered by the employee, in Pietrylo’s case any lost income he suffered because his employment was terminated.